1702188 (Refugee)

[2020] AATA 4633

1702188 (Refugee) [2020] AATA 4633 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702188

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jason Pennell

DATE:8 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 8 September 2020 at 9.26am

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – Shia Muslim – particular social group – membership of a human rights organisation – political opinion – human rights activity – support (including legal assistance) to women and children – imputed pro-Western views – past harm suffered – attacked and kidnapped by Lashkar-e-Jhangvi (LeJ) – credibility concerns – embellished or fabricated evidence – delay in seeking protection – voluntary return to Pakistan – mental health issues – access to mental health care – generalised violence – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMA v Darboy [1998] FCA 931
VSAI v MIMIA [2004] FCA 1602
Wang v MIMA (2000) 105 FCR 548

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 19 July 2013 and the delegate refused to grant the visa on 16 May 2014.

3. The applicant appeared before the Tribunal (differently constituted) on 28 November 2014 and 6 February 2015 to give evidence and present arguments. However, the Member who originally had conduct of the matter was not reappointed and the matter was re-constituted to an alternative Member on 8 July 2015. On 23 December 2015 the Tribunal affirmed the delegate’s decision to refuse the applicant a Protection visa. 

4. [In] January 2017 the Federal Circuit Court of Australia (FCCA) remitted the matter for reconsideration by the Tribunal.

5. The applicant appeared before the Tribunal on 16 January 2019 and 30 June 2020 to give evidence and present arguments. The applicant was represented at the hearings. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

RELEVANT LAW

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

1. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

2. Australia is a party to the Refugees Convention and, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

3. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

6. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[1]

   [1] s.91R(1)(a) of the Act

8. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

9. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

10. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Identity and country of reference

1. The applicant claims that he was born on [date] in Gurjat, Punjab Province, Pakistan. The applicant provided a certified copy of his passport to the Department that confirms the applicant’s evidence as to his date and place of birth.[2] There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. 

   [2]    Department file [number] @ f.3-5

2. Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and that as such his protection claims will be assessed against Pakistan as the country of reference and 'receiving country' respectively.

Migration history  

1. The applicant was issued a [student visa] by the Department of Immigration and Border Protection (DIBP) offshore post in Islamabad [in] February 2012. The applicant arrived in Australia [in] April 2012.[3]

   [3]    Delegate’s decision; AAT No 1410029 @ f.32

2. The applicant returned to Pakistan for a period of two weeks in or about May 2013.

3. On 19 July 2013, the applicant lodged his Protection Visa application upon which the applicant was granted a Bridging Visa ‘A’. The Bridging Visa came into effect on 15 March 2014, when the applicant’s student visa ceased.[4]

Supporting documentation

[4]    ibid

1. The Tribunal has considered the documentation provided by the applicant in support of his application, including:

   (a)Letter from [Mr A] of [Organisation 1] dated 17 August 2011.[5]  

   [5]    Department file [number] @ f.6

   (b)Letter from [Mr A] of [Organisation 1] dated 19 June 2013.[6]  

   [6]    Department file [number] @ f.8; AAT File No 1410029 @ f.109

   (c)Letter from [Mr A] of [Organisation 1] dated 19 February 2015.[7]

   [7]    AAT File No 1410029 @ f.105

   (d)Initial Information about Crime Police Report dated [date] May 2013.[8]

   [8]    Department file [number] @ f.10; AAT File No 1410029 @ f.101 & f.139, 144

   (e)Initial Information about Crime Police Report dated [date] May 2013.[9]

   [9]    Department file [number] @ f.13; AAT File No 1410029 @ f.99 &f.141

(f)Initial Information about Crime Police Report dated [date] November 2013.[10]

[10] Department file [number] @ f.16; AAT File No 1410029 @ f.106 &f.142

(g)Board of Intermediate and Secondary Education [City 1] dated [August] 2009 & [September] 2011.[11]

[11] Department file [number] @ f.18-19; AAT File No 1410029 @ f.146

(h)Police Character Certificate [number].[12]

[12] Department file [number] @ f.20

(i)[Organisation 1] membership cards.[13]

[13] Department file [number] @ f.20A; AAT File No 1410029 @ f.138

(j)[News] Article dated [in] September 2013.[14]

[14] Department file [number] @ f.60

(k)Submission to the Refugee Review Tribunal (RRT) dated 7 October 2014.[15]

[15] AAT File No 1410029 @ f.80 & f.123

(l)Various photos.[16]

[16] AAT File No 1410029 @ f.66

(m)Letter from [Organisation 2] dated [in] March 2014 confirming the applicant’s appointment as an unpaid [Committee] member.

(n)County Information protected for the internet dated 6 May 2013 reporting that a LeJ suspect released for position was running for a seat in the local government of Gurjat.

(o)County Information protected for the internet dated 20 March 2014in which Islamabad was declared Pakistan’s most dangerous city. 

(p)County Information protected for the internet dated [in] March 2014 reporting the shooting death of the applicant’s [relative], a Shia [professional] from [named workplace] and his driver. The LeJ was presumed responsible. They left a note at the scene indicating that the deaths were revenge killings.

(q)Submission to RRT dated 15 December 2014.[17]

[17] AAT File No 1410029 @ f.96;

(r)[News] Article dated [in] November 2014.[18] 

[18] AAT File No 1410029 @ f.137

(s)Letter from [deleted] dated [in] September 2014.[19]

(t)Letter for [deleted] dated [in] November 2014.[20]

(u)Letter from [Ms B] to RRT.[21]

(v)Declaration of Verification by [Mr A] dated 21 October 2015.[22]

(w)Applicants submissions dated 10 August 2017.[23]

(x)Declaration by [the applicant] dated 8 August 2017.[24]

(y)Applicants submissions dated 12 February 2018.[25]

(z)Applicants submission dated 28 April 2018.[26]

(aa)Applicants submission (including attachments A-F) dated 1 August 2020[27]

The applicant’s claims

[19] AAT File No 1410029 @ f.149

[20] AAT File No 1410029 @ f.160

[21] AAT File No 1410029 @ f.196

[22] AAT File No 1410029 @ f.201

[23] AAT File No 1702188 @ f.33

[24] AAT File No 1702188 @ f.34

[25] AAT File No 1702188 @ f.90

[26] AAT File No 1702188 @ f.51

[27] AAT File No 1702188 @ Doc ID 7518194

1. The applicant’s claims are contained in the applicant’s application for a protection visa dated 19 July 2013[28] as follows:

   [28] Department file [number] @ f.47

   ‘Q.43. Why did you leave that country?

   I was facing a lot of difficulties and troubles due to my beliefs and human rights activities. Due to my struggles against violations of human rights, my life is not safe. Terrorists want to kill me. They attacked on me several times. Our police and out institutions have failed to provide me protection. Because of these reasons I left my country.’

   Q.44. Have you experienced harm in that country?

   Yes. So many times, I was mentally tortured while security agencies refused to provide me protection.

   [In] November 2010, while I was going to my college, some unknown persons belonging to a banned religious grouped named ‘Lashkar-e-Shangri’ came and kidnapped me in a car and tried to transfer me to tribal areas. Luckily, there was a checkpoint of army on the way and I got released.

   [In] May 2013, when I was travelling with my father and younger brothers, we were made murderous attempt on our lives. Some unknown persons fired on us. My father filed a complaint at the police station. After that my father sent me to Lahore to stay there.

   [In] May 2013, me and my friend was going on a car, again the terrorists tried to kill me and attacked me with heavy automatic weapons. In this incident I was very narrowly escaped, and our car was badly damaged. I went to the police station after the attack and told them about the incident and filed a complaint but in vain.

   Q.45. What do you fear may happen to you if you go back to your country?

   I have a severe life threat in my country. Terrorists had already attacked on me and tried to kill me three times. They have tortured me mentally and physically before. They are still in search of me. As my experience shows that I will be assassinated by the terrorists of I go back to my country.

   Q.46. Who do you think may harm/mistreat you if you go back?

   Those who do not believe and practice the principles of Human Rights and freedom of expression will kill me if I go back to my country. This include the Al Qaeda and Taliban linked group Lashkar-e-Jhangvi. This group kidnapped me and tired to kill me several times, many of my close relatives are already victim of this group.

   Q.47. Why do you think this ill happen to you if you go back?

   As I have already been targeted three times at different locations, but no institution provided me any kind of help or protection. The terrorists and the religious groups are very strong and powerful. They are out of control. I relied and trusted many times on the authorities of my country, but they did nothing. Due to several reasons the authorities in my country do not want human rights defenders to work in the society. So, I am dead sure that I will be assassinated if I go back to my country.

   Q.48. Do you think the authorities of that country can and will protect you if you go back?

   No. No they cannot provide protection to me and other citizens. They are deeply influenced by so called politicians, religious groups and corrupt Mafia.’

2. In addition to the applicant’s claims as detailed in his protection visa application, the delegate’s decision[29] notes that [in] March 2014, a case worker from [Organisation 2] emailed the department to advise that the applicant suffers for Post-Traumatic Stress Disorder (PTSD) and was attending [counselling].

   [29] Delegates decision @ p.5; AAT No 1410029 @ f.21

3. The delegate’s decision[30] notes the following additional claims were made by the applicant:

   (a)In September 2013, five of the applicant’s relatives (and two others) were killed in their courtyard at their [Village 1] home after Friday prayers. Four men on a motorcycle approached the group and asked after one man. The family member responded in the affirmative and the four men opened fire. No one was arrested for the deaths. A news article from [a news publication] was provided detailing the incident.

   (b)The applicant’s claims for protection are based on the Refugee Convention grounds on religious (Shia) and political opinion (in terms of the applicant’s actual human rights activity and imputed pro-Western views).

   (c)Relocation was not an option for the applicant, given he was involved in  incidents in different areas of Pakistan. His attempt at relocating to Lahore failed.

   (d)The extent of the affiliation of various terrorist groups in Pakistan requires acknowledgment. The case of M13 advises any proposition of relocation should be reasonable and practicable. If the applicant was expected to relocate to an area of Pakistan, away from his home, he would encounter issues as a result of his young age, language barriers, culture and requirement for ongoing education and employment. Crucially, the applicant would be severely disadvantaged as a result of separation from his family, with whom he is very close.

The applicant’s evidence

[30] Delegates decision @ p.6; AAT No 1410029 @ f.20

1. The applicant was born on [date] in Gujrat, Punjab Province, Pakistan. The applicant claims that he is a Shia Muslim and an ethnic Syed (also known as Sayyed). The applicant’s parents continue to live in Pakistan. His father is now retired and lives in Kashmir, but previously worked as an [occupation] at [a named workplace]. The applicant’s mother lives in Lahore Pakistan with his younger brother ([Brother C]). He has two sisters who are married, one lives in Pakistan and the other lives in [Country 1]. The applicant has lived primarily in Gujrat but has spent time in Lahore, Islamabad and Azad Kashmir.

2. The applicant attended school in Gujrat, completing his secondary schooling in [year]. He attended [a school] where he completed his intermediate studies in [a course] in September 2011.

3. The applicant first arrived in Australia [in] April 2012 as the holder of a student visa. He has commenced a [course] at [Education Provider 1] in Melbourne and [a second course] at [Education Provider 2] but did not complete either course. In 2014, the applicant enrolled in a [third course] at [Education Provider 3] in Perth but did not complete the course. The applicant’s student visa ceased on 15 March 2014.

4. After his arrival in Australia the applicant returned to Pakistan in April 2013 for two weeks to visit his family. He claimed that he returned to Pakistan because his mother was sick, and he had become home sick.

5. The Tribunal (previously constituted) was provided with correspondence from the applicant’s mother ([Ms B])[31] in support of the application. Contrary to the applicant’s oral evidence to the Tribunal, the applicant’s mother stated that she and [Brother C] had migrated to [Country 1]. She claims that they left Pakistan because of the constant threats by LeJ. [Ms B] states that she sent her son to Australia because it was not safe for him and his family in Pakistan.

   [31] AAT File No 1410029 @ f.196

6. The applicant submitted that in or about November 2008 he became a member of a not for profit, non-government human rights-based organisation called [Organisation 1]. The applicant’s evidence to the Tribunal was that he was activity involved in [Organisation 1] from 2008 until his departure to Australia in 2012. He claimed that that the organisation provided support (including legal assistance) to women and children in relation to human rights abuses including issues involving education for women and child labour.

7. He claimed that he worked with the association (on a voluntary basis). As part of his responsibilities he claimed that he provided administrative support to the Secretary General of the organisation, [Mr A] and attended jails to distribute materials and arranged seminars for the organisation. When asked about the seminars he had arranged, the applicant stated that they were conducted in community centres and schools but was not able to tell the Tribunal how many seminars he arranged or who spoke/presented at the seminars. The Tribunal informed the applicant that during an internet search for [Organisation 1] it was not able to find any reference to the organisation. The applicant response was that it was a small organisation with only a limited profile. The applicant was not able to say how the organisation was funded, save that it received donations. He was not able to give any details of the source or amount of donations the organisation received.  Nevertheless, the applicant claims that because of his involvement with the organisation he began experiencing persecution in Pakistan because of his beliefs and human rights activities.

8. In addition, the applicant claims that as a result of him being a Shia Muslim he was the target of attacks in Pakistan. He claimed that family members have been killed by religious groups because of their struggle for social justice, freedom of expression and fundamental human rights.

9. The applicant’s evidence was that he had been attacked and threatened by terrorists as a result of his human rights activities and because he is a Shia Muslim. He claims that the police failed to provide him with protection, and as a result, he had to leave Pakistan.

10. [In] November 2010, the applicant claimed that he was attacked and kidnapped while walking to school in Gujrat (‘the first attack’). The applicant’s evidence was that he did not know the people who attacked him but believed they belonged to the Lashkar-e-Jhangvi (LeJ).  He stated that he believed he was kidnapped because he was a Shia Muslim and due to his work with [Organisation 1].  He said that three people attacked him and forced him into a car. He claimed that he was given something to smell and was unconscious while traveling in the car. As a result, he was not able to say where he was taken. Nevertheless, he claimed that he could hear them abusing him and calling him an infidel.  He claims that they attempted to transfer him to a tribal area, but he was released and left on the side of the road at a military checkpoint. He was not able to explain why he was released. His evidence was that he was kidnapped by members of the LeJ. He explained that his father received a phone call the following evening in which the LeJ claimed responsibility for his kidnapping.

11. The applicant was not able to tell the Tribunal how his kidnappers knew he was a Shia Muslim or how they were aware of his father’s identity and his telephone number.

12. The applicant’s evidence was that no other incident occurred between the first attack and his arrival in Australia [in] April 2012.  When questioned by the Tribunal, the applicant said that he had kept a low profile but stated that he and his family had received threats. In particular, he claimed that he had received threats via his father’s telephone. However, the applicant did not provide any detail of the threats and did not provide any independent evidence of having received the threats as claimed. In any event, he said that nothing came of the threats.

13. In or about April/May 2013, the applicant returned to Pakistan for a two-week visit. He claimed that despite his fear that he would be harmed he returned to Pakistan because his mother was sick, and he had become home sick.

14. On or about 9 May 2013 in Gujrat, the applicant claimed that he was attacked while travelling by motorcycle with his father and younger brother when they were fired upon by unknown people near [a location], Gujat (‘the second attack’). The applicant’s evidence was that the shooters shouted his name and said that they would not spare him before opening fire. His father filed a complaint with the police in relation to the incident and the applicant fled to Lahore.

15. [In] May 2013 the applicant claims that he was traveling with a friend in Lahore by car when terrorists tried to kill him using heavy automatic weapons. The applicant claimed that the shooters once again shouted his name before opening fire. The applicant escaped but the car was badly damaged. He filed a police report in relation to the second incident but claims it was all in vain. He said the shooters were different people but from the same terrorist organisation. The applicant did not provide any evidence of the damage to the car (eg photos, repair costs). In addition, the applicant’s friend, [Mr D],[32]  did not provide any statement or other evidence to the Tribunal in support of the applicant’s claim.  

    [32] FIR Report dated [May] 2013; AAT file 1410029 @f.99

16. The applicant claims that he has been targeted at three different locations and the authorities were unable to provide him with any help or protection. He claims the authorities in Pakistan do not want to help a human rights defender

17. The applicant claims that he fears he will be killed by a terrorist group such as Al Qaeda and the Taliban who are linked to LeJ. As such, he claims that there is a real chance he will be seriously harmed in the event that he is returned to Pakistan.

THE COUNTRY INFORMATION

1. In assessing this decision, the Tribunal has considered the available country information. In particular, it has considered an earlier Department of Foreign Affairs and Trade Country   Information Report for Pakistan dated 1 September 2017 (‘the September 2017 DFAT Report’), together with the most recent Department of Foreign Affairs and Trade Country Information Report for Pakistan dated 20 February 2019 ( ‘the DFAT Report’). So far as the applicant’s claims are concerned there is no material difference between the DFAT Report and the September 2017 DFAT Report. The information in the DFAT report specifically considered by the Tribunal is detailed in annexure ‘A’ to these reasons.  

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[33]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[34]

   [33] s.5AAA Migration Act 1958.

   [34]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[35] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [35]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[36] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

Accepted facts

[36]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

1. Based on the oral evidence provided at the hearing the Tribunal accepts and finds that:

   (a)The applicant was born on [date] in Gurjat, Punjab Province, Pakistan.

   (b)He is a Shia Muslim and his ethnicity as Syed (also known as Sayyed).

   (c)The applicant’s father is a retired [occupation] and now lives in Kashmir.

   (d)The applicant’s mother lives in Lahore with his younger brother ([Brother C]).

   (e)The applicant has two married sisters, one living in Pakistan and the other lives in [Country 1].

   (f)The applicant completed secondary schooling in August [year] in Gujrat.

   (g)He subsequently completed his intermediate studies [in] September 2011 in Gujrat.

Applicant’s Refugee Claim

Relevant grounds

1. The applicant claims to have a well-founded fear of persecution within the scope of s.91R(1)(a) of the Act by reason of religion and by reason of being a member of a particular social group as a as a result of his work as a human rights activist.

2. The scope of ‘religion’ within the context of the Convention was considered by the Federal Court in several cases including MIMA v Darboy[37] and Wang v MIMA.[38] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

   ‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’

   [37] [1998] FCA 931 (Moore J, 6 August 1998).

   [38] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].

3. An overview of the scope of ‘religion’ as a refugee ground can be found in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. It states:

   ·‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   ·Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   ·Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’[39]

   [39] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]-[73].

4. Therefore, the question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[40]  It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[41]

   [40] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285.

   [41]   See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

5. Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[42] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[43]

   [42]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

   [43]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).

6. In this case, the applicant is a Shia Muslim who claims to have a well-founded fear of returning to Pakistan by reason of his religion. He claims that, as a result of his religion, he has been kidnapped and attacked by unknown people who he believes are from the LeJ. While, for the reasons expressed below, the Tribunal does not accept that the applicant has been persecuted by reason of his religion, it accepts that his claims do fall within the scope of ‘religion’ as a refugee ground, and as such the Tribunal accepts his claims fall within s.91R(1)(a) of the Act.

7. In addition, the applicant submits that his claims fall within the scope of s.91R(1)(a) of the Act by reason him being a member of a particular social group, as person who has been engaged in human rights activities. In Applicant A (1997) 190 CLR 225, Dawson J summarised the determination of whether a group is a ‘particular social group’ as follows:

   (a)the group must be identifiable by a characteristic or attribute common to all members of the group;

   (b)the characteristic or attribute common to all members of the group cannot be the shared fear of persecution; and

   (c)the possession of that characteristic or attribute must distinguish the group from society at large

8. In this case, the Tribunal has doubts that having worked for and been a member of a human rights organisation in Pakistan constitutes an identifiable characteristic that it could be considered to be a member of a particular group to the extent that it distinguishes him and the group from society at large. Nevertheless, for the purposes of this decision, the Tribunal is prepared to accept that he is a member of a particular social group by reason of membership of a human rights organisation as claimed. As such, the Tribunal accepts that the applicant is a member of a particular group pursuant to s.91R(1)(a) of the Act.

Applicant’s well-founded fear

1. In Chan v MIEA[44] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Dawson J noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[45]

   [44] (1989) 169 CLR 379 at 396.

   [45] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case, based on the evidence of the applicant, the Tribunal accepts that the applicant has a subjective fear of being persecuted in the event that he returns to Pakistan.

3. However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[46]

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [46]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that:[47]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is ‘well-founded’ when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [47]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

1. The applicant claims that, in the event he is returned to Pakistan, there is a real chance he will suffer serious harm as a result of his religion and his human rights activities. For the reasons expressed below, the Tribunal does not accept that the applicant has on either a subjective or an objective fear of persecution for a reason mentioned in s.91R(1)(a) of the Act. 

Applicant’s Claim as a Refugee

1. While the Tribunal is prepared to accept some elements of the first applicant’s claim, he did not present to the Tribunal as a credible witness as he appeared to have embellished or fabricated his evidence in support his claim. While the Tribunal accepts that due to the passage of time, an applicant’s memory of events may fade or change, in this case, for the reasons explained below, the applicant’s evidence of events lacked the necessary detail by which it was possible to conclude he had been persecuted as claimed. Generally, the applicant’s evidence was vague and lacking in detail. For example, he was not able identity any of his attackers, he was not able to provide any evidence as to how his attackers knew of the applicant’s presence in Gujrat and Lahore or how they knew the contact details of his father. It appeared to the Tribunal that the applicant had embellished and/or fabricated his evidence to support his claim for protection as presented to the Tribunal.    

Applicant’s Delay

1. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[48] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[49]

   [48] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.

   [49] Subramanium v MIMA (1998) VG310 of 1997.

2. In this case the applicant arrived in Australia [in] April 2012 on a student visa and returned to Pakistan for a period of approximately two weeks in or about May 2013. The applicant did not apply for a protection visa until 19 July 2013. A delay of approximately 15 months.  

3. The issue of the applicant’s delay in making his protection visa application was raised at the hearing. The applicant’s evidence was that he made the claim for protection as he feared he would be harmed by members of the LeJ as a result of human rights activities and as a Shia Muslim. He claimed that he had been kidnapped in November 2010 by the LeJ due to his human rights activities with the [Organisation 1] and as Shia Muslim.  The applicant claimed that he had been subjected to further incidents of threats and violence but did not provide any evidence of such incidents to the Tribunal.

4. The applicant claimed that he did not make an application for protection upon at the time of first arriving in Australia because his student visa was valid until March 2014. As a result, he believed that there was no rush for him to apply for a protection visa. However, if the applicant had a well-found fear of persecution in Pakistan, the Tribunal would have expected him to make an application for protection as soon as possible upon his arrival in Australia. He claimed that it was only after he was targeted on his return trip to Pakistan that he decided to apply for a protection visa. The Tribunal put to the applicant that because he returned to Pakistan, it would appear he had no fear of being harmed as a result of the kidnapping. The applicant claimed that he was afraid to return but did so because he was home sick. The Tribunal does not accept that in circumstances were the applicant claims he feared for his life that he would return to Pakistan because he was home sick.

5. While the Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears, in this case the Tribunal has some reservations about the credibility of the applicant’s evidence of his kidnapping in November 2010 based on the circumstances in which the applicant applied for a protection visa. While the Tribunal can accept that the applicant may have had some fear of returning to Pakistan, the fact that he did return in 2013 indicates that he was satisfied that there was not a real chance he would be seriously harmed upon his return to Pakistan by reason of having been kidnapped as claimed.

6. The Tribunal finds the significant delay in making his application for a protection visa and his return to Pakistan important factors in assessing the credibility of the applicant’s claim that he was kidnapped in November 2010 by LeJ. Therefore, based on the applicant’s delay between  the first attack and his arrival in Australia, , his return to Pakistan and the delay in making his application for protection upon his return to Australia, the Tribunal, on an objective basis, holds great reservations about the credibility of the applicant’s evidence in relation to the kidnapping and the genuineness or depth of the applicant’s fear of persecution as a result of being kidnapped as claimed.

The [Organisation 1] Letters

1. The applicant submitted letters for the [Organisation 1] dated 17 August 2011,[50] 19 June 2013[51] and 19 February 2015[52] in support of his claim in relation to this involvement in the organisation. All the letters were signed by [Mr A], Advocate High Court and Secretary General of [Organisation 1].

   [50] AAT File No 1410029 @ f.139

   [51] Op Cit @ f.141

   [52] Op Cit @ f.185

2. The [Organisation 1] letter dated 17 August 2011[53] is addressed to the applicant and refers to a complaint lodged with the [Organisation 1] in Urdu Version dated 3 August 2011. The letter does not specify the nature of the complaint referred to but states ‘The Final Report of the Enquiry Commission verified all of the difficulties and hardships. Of course, your life and liberty is in grave danger now a days (sic).’ The Tribunal was not provided a copy of the complaint referred to in the letter and did not receive any evidence (including a copy) in relation to the ‘Final Report of the Enquiry Commission’ referred to in the letter. 

   [53] Op cit @ f.139

3. The letter states that the applicant’s claim had been ‘discussed with high ranking officials of the Punjab Government and Federal Government in Lahore and Islamabad but in vain.’ Further, it states that [Organisation 1] is unable to provide protection and states that the applicant is ‘no doubt facing immediate threat of life and liberty.’ The letter recommends the applicant leave Pakistan for a western country where he could be granted protection in accordance with the United Nations Charter Declaration of Human Rights.

4. It’s not clear to the Tribunal what incident the letter is referring to. The applicant’s evidence was that he was attacked and kidnapped [in] November 2010 while walking to school in Gujrat. His evidence to the Tribunal was that he did not experience any other incident until his return to Pakistan in May 2013. Therefore, circumstances where the applicant claims to have been involved with [Organisation 1] since 2008, it seems unlikely to the Tribunal that the applicant would wait until 3 August 2011 (nine months later) to make a ‘complaint’ to the [Organisation 1].

5. The Tribunal also notes that the letter is dated 17 August 2011. Therefore, in circumstances where the applicant arrived in Australia [in] April 2012, but did not make his application for protection until July 2013, notwithstanding the fact that he had a student visa, the Tribunal notes the applicant’s delay in making his protection visa application in light of the surprising evidence in the letter concerning threats to his life as claimed.

6. The Tribunal finds that the significant delay and his subsequent return to Pakistan are factors in assessing the creditability of the applicant’s claim that he was attacked and kidnapped [in] November 2010. In addition, the Tribunal notes the country information[54]  that reports that document fraud is widespread in Pakistan. It reports that the types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds. Therefore, considering the circumstances of the letter and the relevant country information as to document fraud, the Tribunal places little weight on the letter from [Organisation 1] dated 17 August 2011. 

   [54] DFAT Report @ p.71

7. The applicant also provided a letter from [Organisation 1] dated 19 June 2013 headed ‘The Authorities Concerned in Australia Recommendation for Political Asylum.’ The letter is purported to have been written by [Mr A] and states that the applicant has been known to him since 2008.  It states that the applicant is from a noble and well-known family and states that several of his family members had sacrificed their lives for noble causes of social justice, political rights, freedom of expression and human prosperity.’ However, the letter does not provide any detail in which the applicant’s family members have worked for the causes as claimed in the letter. In addition, the letter states that the applicant has faced a lot of trouble and hardships ‘even threats to his life and liberty.’ While the letter refers to the incidents [in] November 2010, [date] May 2013 and [date] May 2013 its does not detail any of the’ troubles and hardships’ claimed to have been suffered by the applicant.  In addition, it does not detail how [Mr A] became aware of the attacks. It does not identify the applicant’s attackers or explain why the applicant would have been known to his attackers. In particular, the letter does not detail how the applicant would have been known to his attackers by reason of his work with [Organisation 1].

8. Therefore, in light of the country information and given the vague nature of the letter and the fact that it lacks any detail in relation his ‘troubles and hardships’ the Tribunal places little weight on the [Organisation 1] dated 19 June 2013.   

9. Finally, the Tribunal received a letter from [Mr A] of [Organisation 1] dated 19 February 2015 in response to phone call to [Mr A] by the Tribunal made on 28 November 2014. The letter confirms that the applicant was a member of the [Organisation 1] and repeats that the applicant had been kidnapped and targeted by the LeJ. The letter claims that the applicant worked as [Mr A]’s personal assistant regarding human rights activities. The letter also claims members of the applicant’s family had been killed in the struggle against human rights violations and because they belong to a minority sect of Islam. [Mr A] does not provide any details of his knowledge of the applicant’s family or their involvement in human rights struggles as claimed. In addition, he provides no detail as to how he is aware that members of the applicant’s family have been killed and the circumstances in which they were killed as claimed. As such, given the lack of detail provided in the letter and the country information in relation to fraudulent documents in Pakistan the Tribunal places little weight on the [Organisation 1] dated 19 February 2015.     

Applicant as a member of the [Organisation 1]

1. The applicant claimed he decided to work for [Organisation 1] as a result of his two cousins, having been killed in 2004 and 2005. They had worked for an NGO separate from [Organisation 1]. He did not know who was responsible for them being killed but explained that their death lead to him wanting to become involved in human rights matters and him joining [Organisation 1].

2. The applicant claims he joined [Organisation 1] in November 2008 and remained a member until his departure for Australia in 2012. The applicant’s evidence to the Tribunal about his involvement and duties with [Organisation 1] was vague and lacking, giving the impression that he had embellished his evidence for the purposes of his protection visa application. [Mr A] did not give evidence at the hearing.  

3. The Tribunal notes that at the time he claims to have joined the organisation he would have been [a teenager].  He claims to have been promoted to the District Executive Committee in December 2010. While his evidence to the department was that he had provided administrative support to the Secretary General of the organisation, [Mr A], his evidence to the Tribunal was that he worked with the organisation attending jails to distribute materials and arranging seminars for the organisation. He claimed that the seminars were conducted in community centres and schools but did not identify any locations at which the seminars were conducted. In addition, he was not able to tell the Tribunal how many seminars he had arranged or who spoke or presented at the seminars. No independent evidence was provided in relation to the activities of [Organisation 1].

4. The Tribunal notes that the department conducted searches on its country information database and was unable to find any reference to [Organisation 1].[55] The Tribunal also could not locate any reference to the organisation on the internet. In addition, the copy of the letters from [Organisation 1] dated 17 August 2011,[56] 19 June 2013,[57] 19 February 2015[58] (the [Organisation 1] letters) provided by the applicant did not refer to any street address but rather refer to the “[Landmark 1], City of Gujrat, Punjab Pakistan” as its address. The applicant was not able to explain why the searches of the department and the Tribunal could not to find any reference to [Organisation 1]. Nevertheless, he claimed that it was an organisation based in Gurjat which received its funding from public donations. He said that [Organisation 1] was not a political or religious organisation and that it had only approximately [number] members. However, no evidence was provided to the Tribunal as to the establishment and structure of [Organisation 1] or the type of entity (i.e. incorporated association, corporation, partnership, trust ect) through which it is said to operate.  The applicant did however, provided a photocopy of membership card for [Organisation 1].[59]

   [55] AAT File No 1410029 @ f.226; Tribunals Decision dated 23 December 2015

   [56] AAT File 1410029@ f.139

   [57] AAT File 1410029@ f.141

   [58] AAT File 1410029@ f.185

   [59] AAT File 1410029@ f.138

5. The applicant’s evidence to the Tribunal (previously constituted) was ‘that [Mr A] dealt with legal issues’[60] but he was not sure if he was a judge. He thought that he took part in elections for a faction of the Pakistan People’s Party but was not sure of its name. In addition, he believed that [Mr A] was a teacher of [named politician] but was not able to provide any further information. He said he worked with [Mr A] for four years but claims to have limited knowledge of his political history because he was focusing on his school studies at the time.[61]

   [60] AAT file No 1410029 @ f. 206; Tribunal decision dated 23 December 2015

   [61] ibid

6. In circumstances where the applicant claim to have been a member of the [Organisation 1] since 2008 and having worked for the organisation as an administrative assistant to the Secretary General, visiting jail and organising seminars and being promoted to the District Executive Committee as claimed the Tribunal would have expected him to have greater knowledge of the structure and activities of [Organisation 1]. Despite having claimed to have worked for the organisation, albeit on a volunteer basis, the Tribunal would have expected the applicant to have been able to describe the activities of the organisation (and in particular his involvement)  to the Tribunal in great detail. Given the vague nature of the applicant’s evidence and lack of detail, together with the fact that the department and the Tribunal were not able to find any reference [Organisation 1], the Tribunal does not accept that the organisation exists or is legitimately involved in human rights activities as claimed by the applicant. As such, the Tribunal finds that [Organisation 1] is not an organisation involved in human rights activities as claimed and that the applicant was not a member as claimed.  Even if the Tribunal is wrong about the existence of [Organisation 1], then based on the applicant’s evidence the Tribunal finds that the organisation is so small and its activities as a human rights organisation so insignificant that the applicant’s involvement in the organisation would not come to the attention of the LeJ as claimed.  

7. Therefore, based on the applicant’s own evidence, the Tribunal finds that there is no real chance that the applicant will be seriously harmed by reason of his membership or involvement with the [Organisation 1] as claimed.

First Information Reports (FIR)

1. The applicant provided three copies of FIR that the applicant claimed were issued by the Pakistan Police in relation to each incident.

2. The first FIR[62] was issued by the [Police] in Gujrat dated [November] 2010 at 8.55pm by the applicant’s father. Given the vague nature of the applicant’s evidence in relation to the incident, the applicant’s father’s account of the attack and kidnapping, particularly for a person who was not present, displays a surprising amount of detail in relation to events concerning the applicant’s kidnapping. He claims that the applicant left for school at 8.30am but did not return by 3.00pm. As a result, he looked for the applicant but found no clue of him and as a result became anxious. He claims that he became aware that at about 8.45am three-armed people with covered faces kidnapped him at gun point near his college and put him in black car and went towards [a location]. The Tribunal notes that the applicant has not provided the Tribunal with any detail in relation to the car used for his kidnapping or which direction he was taken. The applicant’s father claims in the FIR that subsequently at 7.35pm he received an anonymous telephone call claiming the LeJ had been responsible for the applicant’s kidnapping.

   [62] AAT File No 1410029 @ f.142.

3. In circumstances where the applicant claims that this FIR was made by his father [in] November 2010, the Tribunal notes that he did not provide it to the Australian authorities and make an application for protection visa upon his arrival in Australia. 

4. In any event, that Tribunal notes the country information in relation to fraudulent documentation. The DFAT report[63] states that FIRs use standard forms with the relevant information written in by hand and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of a FIR to constitute evidence that the events described in the FIR actually occurred. Therefore, based on the inconsistencies in the details of the FIR to the applicant’s evidence and the available country information, the Tribunal places little weight on the FIR dated [November] 2010.   

   [63] DFAT Report @ p.71

5. The second FIR[64] was issued by the [Police] in Gujrat dated [May] 2013 at 12.15pm. In the FIR, the applicant’s father states that at about 11.45am he and both his sons were traveling on his [motorcycle]. When they were passing [a location, another motorcycle] approached them  from behind and shouted to the applicant ‘that you will not escape today.’[65] He claims that one motorcycle rider fired at them and that the shots passed ‘our ears touching our hair and the motorcycles rear portion was damaged.’ He claims they fell to the ground and laid there until their attackers had gone ‘some distance’ before they returned home. They were not injured. He claimed that he would be able to identify the attackers.

   [64] AAT File No 1410029 @144

   [65] ibid

6. The Tribunal finds it surprising that after the attack at 11.45am, in which he was shot at and fell from his motorbike, the applicant’s father was able to return home with his two sons and then return to the police station to make the FIR by 12.15pm. That is, less time than it’s claimed to have drafted the FIR. In addition, the Tribunal finds it unlikely that in circumstances where the applicant’s father was traveling on a motorbike with his two sons on a main road and where the attackers had approached them from behind that he was able to hear the attackers, note the size and model of their motorbike and be able to identify them in the future as claimed. As such, the Tribunal does not accept the father’s statement in the FIR and finds that his statement is not credible. In such circumstances and considering the country information about fraudulent documentation in Pakistan, the Tribunal places little weight in the second FIR dated [May] 2013.

3.98 Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.

3.99 Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties (see Security Situation). Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.

3.100 The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’ According to the SATP, 114 Shi’as were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks.

3.101 Travel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure. Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA, are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile.

3.102 Shi’a in Pakistan often travel to Iran and Iraq for religious pilgrimage. Militant groups have historically targeted routes used by Shi’a pilgrims, particularly through Balochistan. In 2014, militants attacked a bus on the Quetta-Taftan highway in Mastung District, Balochistan, killing at least 29 Shi’a pilgrims and injuring 35. Militants identify Shi’a by Shi’a names displayed on CNICs, or flagellation marks from Ashura ceremonies. Hazara Shi’a are more readily identifiable due to their distinctive physical appearance (see Hazaras). Shi’a pilgrims can travel by air rather than by road, but many cannot afford to do so.

3.103 DFAT understands that the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants.

3.104 Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.

Anti-Shi’a violence[118] 

[118] DFAT Report @ p.36

3.105 Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. The NAP (see Security Operations) and the highly visible presence of the paramilitary Rangers, have led to a significant decrease in violence, including sectarian violence. Sunnis and Shi’a live throughout the city, although concentrations of Shi’a, particularly Harazas (see Hazaras) can be found in Abbas Town, Hussain Hazara Goth, Mughal Hazara Goth, Rizvia, Ancholi, DHA Gizri, Pak Colony and Manghopir. According to the SATP, at least two sectarian attacks targeted Shi’a in Sindh province in 2017, resulting in at least 90 deaths, while one attack causing one death occurred between 1 January and 6 May 2018. DFAT assesses that a low level of sectarian-motivated violence in Karachi exists within the context of a moderate level of overall violence. The sustainability of recent security force efforts to reduce violence in Karachi is not yet clear.

3.106 In Punjab, sectarian tensions and violence are more prevalent in the south, and in parts of Gujranwala, Sialkot and Rawalpindi. Conservative madrassas and militant groups are more prominent in southern Punjab, and Sunni and Shi’a communities are more segregated. Shi’a live throughout Punjab, including in Lahore. Shi’a and Sunni communities in cities are much more integrated. According to the SATP, three incidents of sectarian violence in Punjab in 2017 killed three people and injured one, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. The largest sectarian attack in Punjab in 2016 targeted Christians (see Christians). While violence can occur in any part of Punjab, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence.).

3.107 Balochistan has historically suffered from ethno-sectarian tensions and politically motivated violence, including violence from an active separatist movement. There is a large Hazara Shi’a population in Quetta, the provincial capital, which has historically been a target for sectarian violence (see Hazaras). Militants also target Shi’a travelling through Balochistan to the Iranian border (see Shi’a). The number of casualties from sectarian violence in Balochistan has fallen since the introduction of the NAP and Operation Zarb-e-Azb (see Security Operations

3.108 The population of Khyber Pakhtunkhwa is mostly Pashtun and predominantly Sunni. Most Shi’a live in Hangu, Kohat, Peshawar and Dera Ismail Khan. Most Shi’a in Peshawar are long-term residents of the Old City, while many Shi’a in Hangu, Kohat and Dera Ismail Khan are Turi or Bangash Shi’a from Kurram and Orakzai agencies. Similar to other parts of Pakistan, Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years. According to the SATP, one incident of sectarian violence in 2017 killed three people, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. Overall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province.

3.109 Most Shi’a in districts in the former FATA live in Kurram and Orakzai agencies. Shi’a comprise around 40 per cent of the population of Kurram Agency; Upper Kurram Agency is estimated to be around 80 per cent Shi’a, while central and lower Kurram Agency is majority Sunni. Most Shi’a in Kurram Agency are from the Turi tribe, particularly in Parachinar (see Turis). The Bangash tribe is around 40 per cent Shi’a and lives mainly in Orakzai Agency as well as parts of Khyber Pakhtunkhwa such as Kohat, Hangu and Peshawar.

3.110 Despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal. According to the SATP, two incidents of sectarian violence in the former FATA in 2017 killed 92 people and injured 300, while no incidents of sectarian violence occurred between 1 January and 6 May 2018. In 2017, militants carried out several attacks in the Shi’a-majority city of Parachinar.

-    On 21 January 2017, a bomb exploded in a crowded market, killing 25 people and injuring dozens more. Lashkar-e Jhangvi (LeJ) and the TTP claimed responsibility, saying they were responding to the death of LeJ leader Asif Chotu and support by Shi’a for Syrian president Bashar al-Assad. According to Pakistani news outlets, this was the fourth time militants had targeted the same area of Parachinar in recent years.

-    On 31 March 2017, a suicide attack on a Shi’a imambargah killed at least 24 people and injured 100. Jamaat-ul-Ahrar claimed responsibility.

-    On 24 June 2017, two bombs detonated in a market busy with people preparing for Eid celebrations, killing 72 people and injuring more than 200. LeJ Al-Alami claimed responsibility for the attack.

3.111DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.

3.112Approximately two million people live in Gilgit-Baltistan, a sparsely populated autonomous region in the north. The population comprises Shi’a (approximately 39 per cent), Ismaili Shi’a (18 per cent), Sunnis (27 per cent), and Nurbakshis, who adhere to a Sufi tradition combining aspects of Shi’a and Sunni theology (16 per cent). The mountainous terrain, sparse (and majority Shi’a) population, and the fact that communities tend to live in isolation from each other mean that Gilgit-Baltistan has fewer violent incidents than other regions in Pakistan. DFAT is not aware of any sectarian attacks taking place in Gilgit-Baltistan between 1 January 2017 and 6 May 2018. However, Gilgit-Baltistan’s economy is less advanced, and it can be hard for people of any faith, especially youth, to secure employment.

Prevalence of Fraud[119]

[119] DFAT Report @ p.71

5.70 CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.

5.71 Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

5.72 Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.

5.73 FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

5.74 Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.

5.75 As self-declaration as an Afghan is the only requirement to apply for an ACC, it is possible for an individual not in either the NADRA or MORR databases to fraudulently obtain an ACC (see Afghan Refugees).

5.76 Corruption is also common (see Corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return for bribes as low as USD 100. Since then, MoI has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it.